Obama's Filibuster Ultimatum

Confirm his nominees, or Democrats will change Senate rules.

Updated June 4, 2013 7:03 p.m. ET

President
Obama
supports many things he opposed as Senator Obama—such as unlimited terrorist detention—but for flip-flopping with a high degree of artistic difficulty nothing beats his judicial filibuster ultimatum on Tuesday. If Republicans don't confirm his three, yes, three, new nominees to the D.C. Circuit Court of Appeals, he'll unleash Democrats to gut the Senate's filibuster rules.

Mr. Obama didn't explicitly state the threat portion of that ultimatum—he's leaving that dirty work to the reliable
Harry Reid
.
But everyone knows that's the subtext of Tuesday's announcement, which is a political attempt to realign the balance of power on an appeals court that has frustrated the Administration's regulatory overreach.

The Senate has "a constitutional duty to promptly consider judicial nominees for confirmation," Mr. Obama averred in the Rose Garden. "Throughout my first term as President, the Senate too often failed to do that."

ENLARGE

President Obama announcing his nominations to the D.C. Circuit Court of Appeals on Tuesday.
Associated Press

He might have added, but somehow didn't, that the Senate also too often failed to do that "duty" when George W. Bush was President. You could even say that Senate Democrats invented the filibuster against D.C. Circuit nominees. Who can forget the successful Joe Biden-John Kerry effort to defeat the distinguished appellate lawyer
Miguel Estrada
mainly because he is Hispanic and might make it to the Supreme Court someday? And how about the denial of a vote for 918 days to
Peter Keisler
? Both men had majority support but weren't confirmed because Democrats set a standard of 60 votes.

And lest anyone forget, Mr. Obama personally led a filibuster against Supreme Court nominee Samuel Alito in 2006. That filibuster failed, but not because Senator Obama obeyed his "constitutional duty."

Yet now that he's the nominator, Mr. Obama is frustrated that Republicans have adopted his Senate tactics. So he's resorting to a flood-the-zone strategy of making three nominees at the same time to a single court. All three choices—Georgetown University law professor
Cornelia Pillard,
federal district judge
Robert Wilkins
and lawyer Patricia Millett—are various shades of left of center.

But the ideology is less important than Mr. Obama's attempt to pack a court that is often considered the second most important in the country and a proving ground for future Supreme Court Justices. The D.C. Circuit is also the main judicial referee for all manner of ill-conceived regulations and other bad ideas from this executive branch. Mr. Obama is still sore, for example, that earlier this year the court ruled that his non-recess recess appointments to the National Labor Relations Board are unconstitutional. Don't they know judges are supposed to rubber stamp liberal laws?

In May Senate Leader Reid declared that the "majority" on that court "is wreaking havoc with the country" and we "need to do something about it." Since the recent unanimous confirmation of former Deputy Solicitor General
Sri Srinivasan,
the D.C. Circuit actually has a 4-4 split of Republican and Democratic appointees among active judges, but that hasn't assuaged liberal fury.

In April, Mr. Reid told Nevada Public Radio that Republicans should expect consequences if they don't bend on nominees. "All within the sound of my voice, including my Democratic Senators and the Republican Senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary," he said.

If he makes good on that threat, he'll have reneged on his agreement with Minority Leader
Mitch McConnell
not to change Senate rules. In January 2011, Mr. Reid noted that despite "interest" from his caucus, he would "oppose any effort in this Congress or the next to change the Senate's rules other than through the regular order." He repeated the promise this January.

***

Which returns us again to Senator Obama, who in 2005 had this to say when Republicans were thinking of changing Senate rules: "I understand that Republicans are getting a lot of pressure to do this from factions outside the Chamber, but we need to rise above 'the ends justify the means' mentality because we are here to answer to the people—all of the people." He added that "I urge my Republican colleagues not to go through with changing these rules. In the long run, it is not a good result for either party." So much for that.

Republicans should call this bluff. As we've argued ("Packing the D.C. Circuit," May 20), the D.C. Circuit has more than enough judges to hear its shrinking caseload, even as busier appellate courts have legitimate vacancies. The Obama-Reid filibuster ultimatum is nothing more than a liberal power play that shows contempt for traditional political checks and balances.

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